Report: June 2019

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Cerebral Palsy: Liability Risks for Injuries at Birth and Beyond

Introduction

Cerebral Palsy Liability Risks

Cerebral palsy (CP) is the most common motor disability in childhood, with the prevalence of CP ranging from 1.5 to more than 4 per 1,000 live births. Many children with CP also had at least one co-occurring condition, such as epilepsy, congenital cardiac issues, or developmental or other disabilities.

 

The lifetime cost to care for an individual with CP is estimated to be at least $1 million. Very large damage awards have resulted in malpractice actions.

 

Attorneys, physicians, insurers, employers, risk managers, and other potential parties to litigation involving cerebral palsy need to understand the types of litigation issues that may arise.

 

The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a claim arising from a patient’s injury related to cerebral palsy? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for a patient injury related to cerebral palsy? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for the patient’s injury related to cerebral palsy? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be subject to liability for an employee injury related to cerebral palsy? And, what is a potential strategy for the employer to use?

Risk Managers:

Can a risk manager prevent liability or mitigate damages for violations of the Americans with Disabilities Act involving an employee with cerebral palsy? And, what is a potential strategy for the risk manager to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for negligence related to an infant’s cerebral palsy.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving cerebral palsy.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of malpractice or negligence involving cerebral palsy.

Employers:

Use this checklist to determine if a hospital employer of an obstetrician may be held vicariously liable for the actions of its employee or agent.

Risk Managers:

Use this checklist to determine if all appropriate policies, practices, and procedures have been identified and implemented to avoid liability or mitigate damages for malpractice or negligence involving cerebral palsy, and whether all parties complied with these policies, practices, and procedures.

Expert Analysis

How Can the Workplace be More Inclusive for Employees with Cerebral Palsy and Other Disabilities?

Cynthia Frisina
VP of Partnerships, Cerebral Palsy Foundation


Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.  


Reasons To Reach Settlement

The following are reasons why the attorney, physician, insurer, employer, or risk manager would want to reach settlement, and not take the action to trial.


Reasons To Go To Trial

The following are reasons why the attorney, physician, insurer, employer, or risk manager would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving cerebral palsy?



Medical Examples

Cerebral Palsy

This section provides detailed medical information on cerebral palsy, its causes, signs and symptoms, diagnosis and testing, and treatment. Also discussed is the patient’s prognosis and ability to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on cerebral palsy.


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Cerebral Palsy: Liability Risks for Injuries at Birth and Beyond

Table of Contents
Introduction

Expert Analysis
   Cynthia Frisina

The Perspectives: Improve Your Strategy
   Attorneys Perspective
   Physicians Perspective
   Insurers Perspective
   Employers Perspective
   Risk Managers Perspective

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist
   Risk Manager Checklist

Alternative Dispute Resolution

Reasons To Reach Settlement

Reasons To Go To Trial

Jury Awards and Settlements

Cerebral Palsy

Law and Medicine Resources